Double Jeopardy not Offended in Retrial of Single Count of Multiple-act and Alternative-Means Offense

State v. Kalaola (HSC August 19, 2010)

Background. Jason Keliikaoikaika Kalaola was charged with a single count for failing to disperse (HRS § 711-1102). At trial, the prosecution called police officers who responded to a disturbance at the Aloha Tower Marketplace, a mall. Officer Keani Alapa testified that he saw approximately 50 to 75 people fighting on the 2d floor of the mall. Officer Alapa testified that he saw Kalaola challenging people to fight and calling people out. Kalaola was among a group of people that Officer Alapa ordered to leave. They did not leave at first, but eventually they started going downstairs, where new fights started up again. Sergeant Albert Lee testified that he saw people streaming out onto the first floor and parking lot. Sergeant Lee told Kalaola to leave the area at least ten times. Kalaola was yelling and cussing, and Sergeant Lee told him to leave at least ten more times. He saw more fights in the parking lot and Sergeant Lee told Kalaola to leave, but he would not. That was when Sergeant Lee arrested him for failing to dispurse.

The circuit court instructed the jury that the prosecution had to prove beyond a reasonable doubt that Kalaola "was one of six or more persons participating in a course of disorderly conduct" or "was in the immediate vicinity." Kalaola requested the circuit court to instruct the jury about the definition of "disorderly conduct," which was denied. The circuit court, however, also gave the jury a unanimity instruction based on State v. Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996). During closing argument, the prosecutor referred to the Arceo instruction and argued that multiple acts--the events on the 2d floor and the events near the parking lot--supporting a conviction. The jury found Kalaola guilty. He appealed. The ICA concluded that the only error was the failure to give the definition of "disorderly conduct," but rejected Kalaola's other arguments, and vacated the judgment. Kalaola petitioned for certiorari.

Alternative Means Offenses, and Multiple acts Offenses. A person commits the offense of failure to disperse if he or she knowingly (1) was among six or more persons "participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm" or was "in the immediate vicinity" of a disturbance; (2) the person was ordered by a law enforcement officer to disperse; and (3) the person failed to comply with that order. HRS § 711-1102. The HSC noted that this offense is an "alternative means" offense. That means that "a single offense may committed in more than one way[.]" State v. Jones, 96 Hawai'i 161, 170, 29 P.3d 351, 360 (2001). According to the HSC, the offense can be committed by participating in disorderly conduct or being in the immediate vicinity of the disturbance. The HSC also noted that this case is also a "multiple acts" offense, that is, "separate and distinct culpable acts that could support separate counts of an indictment or complaint[,]" but are submitted to the jury in a single count. Id. at 169, 29 P.3d at 359.

Sufficient Evidence Supported a Conviction for Failing to Disperse the 1st Floor, but not the 2d Floor. According to the HSC, the prosecution presented evidence of two possible culpable acts: Kalaola's failure to leave the 2d floor and his failure to leave the ground floor. The HSC held that there was insufficient evidence establishing that Kalaola's failure to disperse from the 2d floor. Officer Alapa did not testify how long Kalaola remained on the 2d floor after he was told to leave. Furthermore, Kalaola was seen on the ground floor 20 minutes later, which suggests that he actually complied with the order to leave. The HSC, however, held that there was sufficient evidence supporting a failure to disperse from the ground floor. There was substantial evidence showing that Kalaola was among at least six people, that Sergeant Lee told Kalaola to leave the area, that Kalaola did not comply because Sergeant Lee testified that he told Kalaola to leave at least ten times. Finally, there was evidence suggesting that Kalaola did these things knowingly. This supporting a conviction for a failure to disperse from the ground floor.

But what about Double Jeopardy? But can Kalaola be retried? The state and federal constitutions prohibit a person from being subjected to "the same offense to be twice put in jeopardy[.]" Haw. Const. Art. I, sec. 10; U.S. Const. Am. V. This provision protects a person against "a second prosecution for the same offense after acquittal[.]" State v. Quitog, 85 Hawai'i 128, 141, 938 P.2d 559, 572 (1997). This also includes cases where "the insufficiency of evidence is such that the appellate court finds that the government failed to prove its case beyond a reasonable doubt." State v. Bannister, 60 Haw. 658, 660, 594 P.2d 133, 135 (1979). But these protections are not absolute. See State v. Miyazaki, 64 Haw. 611, 618, 645 P.2d 1340, 1345 (1982). The Double Jeopardy clauses are not violated when a defendant was not acquitted and the case was set aside for reasons other than insufficiency of evidence. State v. Whiting, 88 Hawai'i 356, 359, 966 P.2d 1082, 1085 (1998); State v. Jess, 117 Hawai'i 381, 439 n. 28, 184 P.3d 133, 191 n. 28 (2008).

Not a Problem here . . . The HSC held that its holding that there was insufficient evidence to convict for the act of not leaving the 2d floor did not invoke the Double Jeopardy Clause. Although "a defendant may not be retried for any offense of which he has been acquitted, whether expressly or impliedly, notwithstanding a subsequent reversal of the judgment on appeal[,]" State v. Feliciano, 62 Haw. 637, 644, 618 P.2d 306, 311 (1980), in this case, the jury did not enter a verdict of acquittal. Nor did the jury's verdict impliedly acquit Kalaola of any offense. Implied acquittals typically arise when the jury convicts of a lesser-included offense (thereby implying that the defendant has been acquitted of the charged offense). Id. at 643-44, 618 P.2d at 311. It can also arise when the jury finds a fact that inconsistent with guilt at retrial. State v. Pesentheiner, 95 Hawai'i 290, 291, 22 P.3d 86, 87 (App. 2001). None of those situations arose here. Remanding the case for retrial, according to the HSC, did not violate Double Jeopardy.

But what about the 2d Floor? So if the case can be remanded for retrial, could a jury find Kalaola guilty of failing to disperse from the 2d floor? Would that violate Double Jeopardy? According to the HSC, "double jeopardy precludes the State from again seeking a conviction of Kalaola based on his failure to disperse form the second floor[.]"

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the majority that the failure-to-disperse offense presents alternative statutory means for conviction and is also based upon multiple acts in this case. However, Justice Acoba wrote that the prosecution failed to adduce evidence that all of the multiple acts were supported by substantial evidence. Finally, Justice Acoba believed that the case should be reversed because retrial would violate the principles of Double Jeopardy. Justice Duffy joined.